Dependency Court Process

A dependency is an assertion by the state or a third party that a parent is unfit or unable to care for their child or children. The Department of Child Safety (DCS) is usually the party who requests the state file a dependency petition to remove the children from the custody of the parents. DCS may request removal based upon:

Process Begins - Reports Received

The
DCS hotline receives a report regarding possible neglect or abuse of a
child. A DCS investigator well look into the matter and possibly remove
the child and serve a temporary custody notice to the parent. Typically
DCS will hold a Team Decision Making Meeting (TDM) within seventy-two
hours of removal.

A TDM is an opportunity for the parents and
DCS to discuss safety concerns, possible placement issues and potential
services. Parents are entitled to retain and have an attorney present
during the TDM. Even if the parents are unable to obtain an attorney
they may bring supportive family and friends to the TDM.

Dependency Petition

If the child(ren) is/are not returned within seventy-two hours of
removal, DCS will request that the Attorney General file a dependency
petition.

Once a petition is filed requesting that the children
be found dependent wards of the state, the court schedules a
pre-hearing conference and a preliminary protective hearing and appoints
counsel for the parents and a Guardian ad Litem for the children. The
pre-hearing conference and the preliminary protective hearing will be
held in five to seven days of the removal of the child from the home.

Pre-Hearing Conference

On the day of the pre-hearing conference the parents will meet with
their attorneys to discuss the case. After the meeting all parties will
be ushered into a conference room for the pre-hearing conference. The
purpose of the pre-hearing conference is to facilitate the resolution of
issues, custody, placement, and visitation in a non-adversarial manner.

After the pre-hearing conference the parties will have a
formal hearing before the judge where the agreements reached at the
prehearing are entered on the record. Also, the preliminary protective
hearing is where the parent may dispute the removal of their children
and request a hearing to determine whether the children require out of
home placement. If a parent does not appear for the pre-hearing
conference and the preliminary protective hearing, the matter will be
set for an initial hearing.

Initial Hearing

An initial hearing is
set 21 days from service of a dependency petition. At the initial
hearing the parents can deny or admit the allegations in the petition
regarding inability to parent. If the parents deny the allegations the
court will set the matter for an adjudication hearing (trial) where the
state must prove to the court by a preponderance of the evidence that
the children are dependent and in need of state care.

Prior to
the adjudication (trial) hearing the court will may hold a settlement
conference with a mediator in hope of resolving some matters in a
non-adversarial. After the settlement conference, the court will hold a
Pre-adjudication conference to discuss adjudication issues and schedule
the adjudication dates.

Adjudication

The
adjudication will take place within 90 days from service of the
petition. The state, represented by the Attorney General’s Office, has
the burden of proving the children were not adequately being cared for.
The state’s witnesses will be the DCS worker who conducted the
investigation of the home and the parents, any family or friends who can
testify about the treatment of the children, police (if they were
called to the residence), anyone familiar with the neglect or abuse and
both parents.

Since a finding of dependency is a civil matter,
the parents do not have a constitutional right to remain silent; they
must answer the states questions, unless they are pending criminal
charges on the same allegations. The parents will have an opportunity to
call witnesses to refute the allegations presented by the state.

Ruling
After
all of the witnesses testify the judge will make a ruling regarding
dependency. If the state fails to prove the children are dependent the
petition will be dismissed and the children will be ordered returned to
the parents’ custody. If the children are found to be dependent the
court will hold a Disposition hearing within 30 days of the trial to
determine the appropriate placement of the children, establish a
case-plan and outline services the parents and children will receive.
DCS will be required to submit a case plan to the court regarding the
long term goals for the children, family reunification or severance and
adoption.

Disposition Hearing

At
the Disposition the court will order the mother and father to fully
comply with the case plan outlined by DCS. Usually, the goal of DCS is
to return the children to their parents. Before that can happen the
parents may be required to participate in counseling, drug test, work
with a parent mentor / aide and actively participate in visitation.

The
court will schedule a Report and Review within six months of the
Disposition Hearing. At the Report and Review the court will assess the
parent’s progress in removing the barriers to their children’s return
home. The children may be returned home at the review hearing if the
parent(s) has proven the danger to the child has been removed.

Permanency Planning Hearing

A Permanency Planning Hearing will be held within six months of removal
from the home if the child is under three years of age and one year of
removal from the home if the children are over three years of age.

At
the hearing the state may request the case plan be changed to severance
and adoption or permanent guardianship if the parents are not making
progress towards re-unification with their children.

If the
court changes the case plan to severance and adoption or permanent
guardianship the parents may lose all rights to their children forever.

Incarceration or felony conviction, if the felony is of such a nature
that it is obvious the parent cannot parent or the length of
incarceration is at a minimum more than two years

Failure to file a paternity action

Consent to adopt

Time in care: 9 months if the parents have substantially neglected or
refused to follow through on services or 15 months if the parent has
been unable to remedy the situation while participating in services

Previous Dependency: within eighteen months of the return of the
children, the children are again removed by the state. Also, the court
must find that it is in the children’s best interest to terminate the
parents’ rights. Once a parent’s rights have been severed their children
are free to be adopted by others

Permanent Guardianship

The court may choose to order a Permanent Guardianship rather than
adoption if the parents’ rights are severed. Permanent Guardianship is
usually offered in cases involving older children who are placed in the
care of a relative or family friend. The permanent guardian is
responsible for the children and may not return them to the care of
their parent without a court order.

Appealing Findings of Dependency or Severance

A parent may appeal a finding of dependency or severance. An appeal is a
request by the moving party to the Court of Appeals to find that an
error of law or procedure occurred during the case and therefore the
trial court must reconsider its decision.

The Court of Appeals
will not reweigh the evidence or take new testimony; it will only
review the trial court’s record to determine if a mistake occurred. The
Court of Appeals presumes that the trial court acted appropriately and
will only overrule the trial court if there is a clear mistake of law or
procedure.